Case C‑585/16
Serin Alheto
v
Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite
(Request for a preliminary ruling from the Administrativen sad Sofia-grad)
(Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection — Directive 2011/95/EU — Article 12 — Exclusion from refugee status — Persons registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) — Existence of a ‘first country of asylum’, for a refugee from Palestine, in the UNRWA area of operations — Common procedures for granting international protection — Directive 2013/32/EU — Article 46 — Right to an effective remedy — Full and ex nunc examination — Scope of the powers of the court of first instance — Examination by the courts of international protection needs — Examination of grounds of inadmissibility)
Summary — Judgment of the Court (Grand Chamber), 25 July 2018
Acts of the institutions — Directives — Implementation by Member States — National provisions falling within the scope of a directive — National provisions preceding the directive capable of ensuring that the national law is consistent with it — Included
Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Procedures for granting and withdrawing international protection — Directive 2013/32 — Procedure for examining an application for international protection — Application lodged by a person registered with UNRWA — Obligation to check whether that person receives effective protection or assistance from UNRWA
(European Parliament and Council Directives 2011/95, Art. 12(1)(a) and 2013/32, Art. 10(2))
Acts of the institutions — Directives — Effect — Member State’s failure to implement — Right of individuals to rely on the directive — Conditions
(Art. 288, third para., TFEU)
Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Directive 2011/95 — Qualification for refugee status — Person who is receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees — Exclusion from being a refugee — Ceasing of that assistance — Direct effect — Implementation — Automatic application
(European Parliament and Council Directive 2011/95, Art. 12(1)(a); Council Directive 2004/83, Art. 12(1)(a))
EU law — Interpretation — Methods — Literal, systematic and teleological interpretation
Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Procedures for granting and withdrawing international protection — Directive 2013/32 — Appeal against a decision on an application for international protection — Right to an effective remedy — Obligation to examine both facts and points of law — Scope — Person who is receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directives 2011/95, Art. 12(1)(a), and 2013/32, Art. 46(3))
Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Appeal against a decision on an application for international protection — Right to an effective remedy — Obligation to examine both facts and points of law — Scope — Grounds of inadmissibility of the application for international protection — Included — Conditions
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Arts 33(2) and 46(3))
Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Procedure for examining an application for international protection — Concept of first country of asylum — Applicant enjoying sufficient protection in a country, other than as a refugee — Meaning — Person registered with UNRWA — Included — Conditions
European Parliament and Council Directive 2013/32, Art. 35(1)(b))
Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Appeal against a decision on an application for international protection — Right to an effective remedy — Annulment of the initial decision — Lack of common procedural standards concerning the power to adopt a new decision — Obligation to adopt a new decision within a short period of time
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Art. 46(3))
See the text of the decision.
(see para. 77)
Article 12 (1) (a) of Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, read in conjunction with Article 10 (2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that the processing of an application for international protection lodged by a person registered with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) requires an examination of the question whether that person receives effective protection or assistance from that agency, provided that that application has not been previously rejected on the basis of a ground of inadmissibility or on the basis of a ground for exclusion other than that laid down in the first sentence of Article 12 (1) (a) of Directive 2011/95.
(see para. 90, operative part 1)
See the text of the decision.
(see para. 98)
The second sentence of Article 12(1) (a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and the second sentence of Article 12 (1) (a) of Directive 2011/95 must be interpreted as:
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precluding national legislation which does not lay down or which incorrectly transposes the ground for no longer applying the ground for exclusion from being a refugee contained therein;
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having direct effect; and
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being applicable even if the applicant for international protection has not expressly referred to them.
(see para. 101, operative part 2)
See the text of the decision.
(see para. 108)
Article 46 (3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a court or tribunal of a Member State seised at first instance of an appeal against a decision relating to an application for international protection must examine both facts and points of law, such as the applicability of Article 12 (1) (a) of Directive 2011/95 to the applicant’s circumstances, which the body that took that decision took into account or could have taken into account, and those which arose after the adoption of that decision.
Thus, Article 46 (3) of Directive 2013/32 states that, in order to comply with Article 46(1) of that directive, Member States bound by that directive must ensure that the court or tribunal before which the decision relating to the application for international protection is contested carries out ‘a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to [Directive 2011/95]’. In that regard, the expression ‘ex nunc’ points to the court or tribunal’s obligation to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal. Such an assessment makes it possible to deal with the application for international protection exhaustively without there being any need to refer the case back to the determining authority. For its part, the adjective ‘full’ used in Article 46 (3) of Directive 2013/32 confirms that the court or tribunal is required to examine both the evidence which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority. The words ‘where applicable’, contained in the limb of the sentence ‘including, where applicable, an examination of the international protection needs pursuant to [Directive 2011/95]’, underline, as the Commission submitted at the hearing, the fact that the full and ex nunc examination to be carried out by the court need not necessarily involve a substantive examination of the need for international protection and may accordingly concern the admissibility of the application for international protection, where national law allows pursuant to Article 33 (2) of Directive 2013/32.
(see paras 106, 111-113, 115, 118, operative part 3)
Article 46 (3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that the requirement for a full and ex nunc examination of the facts and points of law may also concern the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive, where permitted under national law, and that, in the event that the court or tribunal hearing the appeal plans to examine a ground of inadmissibility which has not been examined by the determining authority, it must conduct a hearing of the applicant in order to allow that individual to express his or her point of view in person concerning the applicability of that ground to his or her particular circumstances.
(see para. 130, operative part 4)
Point (b) of the first paragraph of Directive 2013/32 must be interpreted as meaning that a person registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) must, if he or she is a beneficiary of effective protection or assistance from that agency in a third country that is not the territory in which he or she habitually resides but which forms part of the area of operations of that agency, be considered as enjoying sufficient protection in that third country, within the meaning of that provision, when it:
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agrees to readmit the person concerned after he or she has left its territory in order to apply for international protection in the European Union; and
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recognises that protection or assistance from UNRWA and supports the principle of non-refoulement, thus enabling the person concerned to stay in its territory in safety under dignified living conditions for as long as necessary in view of the risks in the territory of habitual residence.
(see para. 143, operative part 5)
Article 46 (3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that it does not establish common procedural standards in respect of the power to adopt a new decision concerning an application for international protection following the annulment, by the court hearing the appeal, of the initial decision taken on that application. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter of Fundamental Rights requires that, in the event that the file is referred back to the quasi-judicial or administrative body referred to in Article 2(f) of that directive, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision.
In that regard, it must be noted that Article 46 (3) of Directive 2013/32 only concerns the ‘examination’ of the appeal and does not therefore govern what happens after any annulment of the decision under appeal. However, Article 46 (3) of Directive 2013/32 would be deprived of any practical effect if it were accepted that, after delivery of a judgment by which the court or tribunal of first instance conducted, in accordance with that provision, a full and ex nunc assessment of the international protection needs of the applicant by virtue of Directive 2011/95, that body could take a decision that ran counter to that assessment or could allow a considerable period of time to elapse, which could increase the risk that evidence requiring a new up-to-date assessment might arise.
(see paras 145, 147, 149, operative part 6)